US v. Burch, 95-40045-01-02-SAC.

• Decision Date: 06 October 1995
• Docket Number: No. 95-40045-01-02-SAC.,95-40045-01-02-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Gerald G. BURCH, and Gale F. Burch, Defendants.
• Court: U.S. District Court — District of Kansas

906 F. Supp. 592

UNITED STATES of America, Plaintiff, v. Gerald G. BURCH, and Gale F. Burch, Defendants.

No. 95-40045-01-02-SAC.

United States District Court, D. Kansas.

October 6, 1995.

Steven E. Emke, Grounds, Rose & Emke, Kansas City, MO, Gordon Harness, Oklahoma City, OK, Gary Hill, El Paso, TX, for Gerald G. Burch.

Gerald G. Burch, pro se.

Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Gale F. Burch.

Gale F. Burch, pro se.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for the U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On June 13, 1995, the grand jury returned a two count indictment charging Gerald G. Burch and Gale F. Burch, apparently husband and wife, with conspiracy to possess with intent to distribute 538 pounds of marijuana (Count 1) and possession with intent to distribute 538 pounds of marijuana (Count 2). The marijuana was discovered during a stop of the semi-tractor/trailer rig driven by Gerald Burch; Gale Burch was riding as a passenger.

This case comes before the court upon the following pretrial motions:¹

Motion filed by Gerald G. Burch (represented by Gary Hill):

1. Motion to Suppress Evidence (Dk. 39).

Motions by Gale F. Burch (represented by Marilyn Trubey):

1. Motion for disclosure of Rule 404(b) Evidence (Dk. 32).

2. Motion to Suppress Evidence (Dk. 31).

3. Motion to Suppress Statement (Dk. 33).

The government has filed responses to each of the defendant's motions (Dk. 35 and Dk. 44).

On September 11, 1995, the court conducted a hearing on the defendants' motions and took the matter under advisement. The defendants were afforded an opportunity to file an additional brief addressing the issues raised in their motion to suppress, and Gerald Burch availed himself of that opportunity. The court, having considered the evidence presented, the briefs and arguments of counsel, and the applicable law, is now prepared to rule.

Motion for disclosure of Rule 404(b) Evidence (Dk. 32).

Gale Burch seeks an order directing the government to disclose any evidence it intends to introduce at trial pursuant to Fed. R.Evid. 404(b). The government responds, indicating that does not have any Rule 404(b) evidence that it plans to introduce at trial.

Gale Burch's motion is denied as moot.

Motions to Suppress Evidence (Dk. 31 and Dk. 39).

Both Gale and Gerald Burch seek an order suppressing evidence seized from the truck. Consolidated, these are the arguments advanced by the defendants:

1. The stopping of the vehicle based upon a random "spot check" was not authorized by the Kansas statute and was therefor illegal.

2. Even if the initial stop was legal, the subsequent questions exceeded the scope of the stop's underlying justification/unlawful detention.

3. If consent to search was given, such consent was not voluntary.²

Summary of Facts

On June 4, 1995, at approximately 2:19 p.m., Kansas Highway Patrol Trooper B.K. Smith, while on routine patrol, stopped a semi-tractor and trailer driven by Gerald Burch. Gale Burch was riding as a passenger. Trooper Smith stopped the vehicle for an inspection pursuant to his authority under the laws and regulations of the State of Kansas and the Kansas Corporation Commission. Trooper Smith' stopped the truck for a routine truck inspection of equipment, permits and driver record of duty status. Trooper Smith typically stops several commercial trucks at random each month to perform such inspections.

During the safety inspection, Trooper Smith asked Gerald Burch if he had a letter permitting him to carry a passenger with him. Gerald Burch indicated that he did not think that such a requirement applied as Gale Burch was part owner.

Although Trooper Smith's exterior inspection of the truck and trailer revealed no safety violations, Trooper Smith became increasingly suspicious. The bill of lading was hand written. Although the cargo was generally described, the weight of the freight was not indicated. Trooper Smith noticed that the shipping charge for the items was only $337, an amount he believed to be too low to pay for a trip from Dallas, Texas, to Chicago, Illinois.

After completing his inspection of the exterior of the vehicle and the documents, Trooper Smith gave Gerald Burch a "Kansas Highway Patrol Truck Inspection Report," which indicated no safety infractions and no hazardous materials were being transported. Gale Burch argues that instead of simply releasing him as he should have done, Trooper Smith instead required him to open the trailer for inspection. Trooper Smith testified that although he had given Gerald Burch a copy of the Kansas Highway Patrol Truck Inspection Report, his examination of the vehicle was not complete until he checked the cargo in the trailer and whether it was safely secured. When the door to the trailer was opened, Trooper Smith could see very little cargo in the large trailer. In addition, Trooper Smith was assailed with the odor of marijuana and mothballs. A subsequent test of the substances found in the trailer indicated that the boxes contained 538 pounds of marijuana.

Trooper Smith placed Gerald Burch under arrest. Retrieving his shotgun from his vehicle, Trooper Smith proceeded to the cab of the vehicle and placed Gale Burch under arrest at approximately 2:35. Gale Burch was advised of her rights. The Burches were taken to Lyndon, Kansas at approximately 4:00 p.m.

Trooper Haak, the Kansas Highway Patrol liaison working with the Drug Enforcement Administration, was contacted. Trooper Haak traveled to Lyndon in an attempt to interview the Burches and arrange a controlled delivery of the marijuana. Trooper Haak first interviewed Gerald Burch. Trooper Haak subsequently interviewed Gale Burch. Prior to interviewing Gale Burch, Trooper Haak advised her of her rights. At that time, Gale Burch indicated that she did not want to speak to Trooper Haak. Trooper Haak then terminated the interview.

Gale Burch, apparently after talking with her husband, changed her mind and indicated that she wished to talk with Trooper Haak. Gale Burch then provided information regarding the receipt and delivery of the marijuana. The hour-long interview concluded with the understanding that Gale Burch would cooperate in making a controlled delivery of the marijuana in Chicago, Illinois.

Trooper Haak then proceeded to make arrangements for the controlled delivery. However, the process of making the necessary arrangements was not instantaneous and required the better part of a day to consummate. When Trooper Haak returned to make the final arrangements with the Burches for the controlled delivery, Gale Burch asked Trooper Haak if she would be placed in jail in Chicago after the controlled delivery. Trooper Haak indicated that it was possible she would spend some time incarcerated. At that point, Gale Burch, apparently frustrated with the arrangement, refused to cooperate further. On June 7, 1995, Gale Burch was taken before a magistrate.

Standing

As an initial issue, the government challenges Gale Burch's standing to object to the search of the trailer. Because Gale Burch was merely a passenger and did not have a possessory interest in the trailer, the government argues that she cannot challenge the lawfulness of the search of the trailer. Gale Burch's brief does not address this issue, but is apparently premised on the assumption that she does have standing.

The government correctly argues that a passenger lacks standing to challenge the legality of the search of a vehicle she does not own, have lawful possession or lawful control. See United States v. Kopp, 45 F.3d 1450, 1452-1453 (10th Cir.) (defendant did not have privacy interest in U-Haul trailer he did not own, lease or control access), cert. denied, ___ U.S. ___, 115 S.Ct. 1721, 131 L.Ed.2d 579 (1995); United States v. Lewis, 24 F.3d 79, 81 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 271, 130 L.Ed.2d 189 (1994); United States v. Abreu, 935 F.2d 1130 (10th Cir.) (defendant has no privacy interest in trailer attached to tractor defendant owned), cert. denied, 502 U.S. 897, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991). However, the Burches are apparently residents of Texas. Under Texas law, see Tex.Fam.Code Ann. § 5.02 (West 1995) ("Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."), Gale Burch is presumed to be a coowner of the truck and therefore, based upon the evidence presented, she apparently has standing to contest the stopping of the truck.³

Legal Standards

In United States v. Seslar, 996 F.2d 1058 (10th Cir.1993),⁴ the Tenth Circuit addressed issues similar to those presented by this case.

In general, there are three types of citizen-police encounters: (1) consensual encounters, which involve a citizen's voluntary cooperation with an official's non-coercive questioning and which are not seizures within the meaning of the Fourth Amendment; (2) investigative detentions or "Terry stops," which are seizures that are justified only if articulable facts and reasonable inferences drawn from those facts support a reasonable suspicion that a person has committed or is committing a crime; and (3) arrests, which are seizures characterized by highly intrusive or lengthy detention and which require probable cause to believe that the arrestee has committed or is committing a crime.

996 F.2d at 1060. A less common type of citizen-police encounter is the so-called "regulatory search."

A regulatory search is governed by the Fourth Amendment but does not require probable cause as defined traditionally by the courts. In general, probable cause, and the less stringent standard of reasonable suspicion, require particularized suspicion — that is, the officer must have some articulable basis to believe that the individual to be searched or seized has committed or is committing a crime. In contrast, a regulatory search is justified if the state's interest in ensuring that a class of

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